Diversity and the chief litigator

As I write this, the Supreme Court, in the Michigan affirmative action case, has just banged another nail into the coffin of the traditional concept of diversity, a concept with deep American historical roots built around long-established ideas of ethnic, racial and gender identity. Whether one thinks this is a good idea, as I have argued elsewhere, it has long been inevitable. The idea of ethnic, racial and gender preferences has grown increasingly unpalatable to large segments of the American population. I predict we will see a continuing retreat from the traditional idea of diversity in the coming years in many aspects of our society.

Ironically, those of us who practice law in the great multinational corporations of today know that perhaps nowhere else is the commitment to the idea of diversity more firmly rooted than in the corporate world. This is not because of ideology, or altruism, or political correctness, but rather because of the recognition that diversity is an essential characteristic of life in the “flat earth” of modern global business. It is absurd to imagine a successful global corporation that is not attuned to the rich and textured fabric of human life, with its subtle differences and profound commonalities.

Those who imagine that the Supreme Court's rejection of traditional affirmative action will at last mean a return to a world where those in power need not concern themselves with the social and economic inclusion of people of color, or women, or gay people, are deluded. Those of us living today will be the last people ever born for whom a person's color, or gender, or sexual preference will serve as a basis for disparate treatment or moral judgment. No mere court decision can alter the trajectory of history for very long.

But today, in the here and now, we must live with the current bend of the law and make the best of it. My own view is that it is time to throw aside the traditional concept of diversity and replace it with a new and more complete concept. Diversity of race and gender was always a proxy for the kind of diversity that ought to matter most (i.e. diversity of thought and experiences and backgrounds). It is this kind of diversity that leads to creativity, innovation and meaningful human connections, and it is the reason why the idea of diversity remains very much alive in the corporate world. In the future, that is what we should be talking about when we talk about diversity.

We should look for this new kind of diversity in the people we hire for our teams. We should insist on it in our vendors, like law firms, and we should encourage it in our neutrals and judges. It ought to be viewed not as a legal obligation, or even a moral responsibility (though it is surely the latter), but as an integral and essential aspect of the challenge of building world-class teams. Now, this new kind of diversity inevitably will have some overlap with the old kind of diversity, and some of the beneficiaries of the latter will also benefit from the former, and there is nothing wrong with that. But it will be built on an entirely different foundation, one more likely to be viewed as legitimate by society as a whole, and therefore more likely to lead to permanent and positive change.

Those who revel in the Court's retreat from the concept of legally mandated affirmative action may find that their victory is entirely pyrrhic, and that the world is changing far faster than the ability of courts to keep up. The new diversity is increasingly a fact of our lives. Again, one may argue whether this is a good or bad idea, but I would argue it is inevitable.